The Olmstead Decision: State Responses and its Implications for Public Health and Law Kim McWhorter ORISE Fellow – CDC Public Health Law Program MPH Candidate Emory University

Overview Olmstead v. L.C. Olmstead v. L.C. Public health-mental health connection Public health-mental health connection General Olmstead Responses General Olmstead Responses Unique Olmstead Responses Unique Olmstead Responses Legal Implications Legal Implications Future implications Future implications

Olmstead v. L.C. July 1999 July 1999 Interpreted Title II, ADA Interpreted Title II, ADA –“in the most integrated setting appropriate to the needs of qualified individuals with disabilities” Holdings limited to individuals with mental disabilities Holdings limited to individuals with mental disabilities Executive order included all Americans with disabilities (Executive Order #13217) Executive order included all Americans with disabilities (Executive Order #13217)

Summary of Olmstead Implications Provide services in the most integrated, appropriate setting Provide services in the most integrated, appropriate setting Community treatment is preferable to treatment in an institution Community treatment is preferable to treatment in an institution Must be reasonably possible (fiscally and programmatically) for the state to provide community placement Must be reasonably possible (fiscally and programmatically) for the state to provide community placement States are required to provide community- based treatment if appropriate and not opposed by the person with a disability States are required to provide community- based treatment if appropriate and not opposed by the person with a disability

New Freedom Initiative Initiated in 2001 Initiated in 2001 Increasing access to assistive and universally designed technologies Increasing access to assistive and universally designed technologies Expanding educational and employment opportunities Expanding educational and employment opportunities Promoting increased access into daily community life Promoting increased access into daily community life

Why are mental health issues important to CDC? Link between mental health and physical health Link between mental health and physical health Risk factor Risk factor Vulnerable populations Vulnerable populations Large public health issue that affects the broader community Large public health issue that affects the broader community

General State Olmstead Responses Services in home and community-based settings Services in home and community-based settings Broad-based education and dissemination of information Broad-based education and dissemination of information Well-coordinated programs Well-coordinated programs Simplified access to services Simplified access to services Self-direction Self-direction Funding Funding

Services in HCB Settings Moving nursing facility residents into the community Moving nursing facility residents into the community Integrate self-determination concepts into the LTC system Integrate self-determination concepts into the LTC system Increase capacity of community-based programs Increase capacity of community-based programs

Education and Dissemination of Information Education of family members/caregivers about community-based services Education of family members/caregivers about community-based services –Family directed care Emphasize consumer choice Emphasize consumer choice –Informed choice –Increasing outreach

Improvements in the LTC Workforce Increased training for service professionals Increased training for service professionals Create incentives for people to become community-living support and personnel Create incentives for people to become community-living support and personnel Innovative ways to find, hire and retain caregivers for LTC services Innovative ways to find, hire and retain caregivers for LTC services Caregiver compensation Caregiver compensation

Well Coordinated Programs Continuum of community integrated services Continuum of community integrated services Housing Housing Employment Employment Transportation Transportation

Simplified Access to Services Aggregate information systems Aggregate information systems Electronic databases of available services Electronic databases of available services System for ensuring timely and appropriate community placement System for ensuring timely and appropriate community placement Identifying and assessing waiting lists and developing guidelines for the movement in each program area Identifying and assessing waiting lists and developing guidelines for the movement in each program area Ongoing monitoring and reporting mechanism Ongoing monitoring and reporting mechanism

Funding Establish new revenue sources Establish new revenue sources Community-waiver programs Community-waiver programs Additional Medicaid waiver slots Additional Medicaid waiver slots RCSC Grants RCSC Grants Nursing Facility Transition Grants Nursing Facility Transition Grants

Unique State Olmstead Responses Education Education Self-determination Self-determination Staffing Staffing Transportation Transportation Housing Housing Accessibility Accessibility Funding Funding

Education Public education campaign (Hawaii) Public education campaign (Hawaii)

Self-determination Peer support network (Connecticut) Peer support network (Connecticut) Train consumers on how to coordinate, negotiate, purchase, direct, hire and fire attendants (Missouri) Train consumers on how to coordinate, negotiate, purchase, direct, hire and fire attendants (Missouri) Increase adult protective services and ombudsman networks (Montana) Increase adult protective services and ombudsman networks (Montana) Crisis intervention and support system (South Carolina) Crisis intervention and support system (South Carolina) Complaint system (South Carolina) Complaint system (South Carolina)

Staffing Interim pay to PCAs (Arizona) Interim pay to PCAs (Arizona) Professional liability insurance for community-living support personnel (Hawaii) Professional liability insurance for community-living support personnel (Hawaii) Olmstead training for state agency and provider staff (Missouri) Olmstead training for state agency and provider staff (Missouri) Personal care assistant registry (New Jersey) Personal care assistant registry (New Jersey) Career ladders (Ohio) Career ladders (Ohio)

Transportation Partnerships to provide fixed route and flexible scheduling opportunities (Mississippi) Partnerships to provide fixed route and flexible scheduling opportunities (Mississippi) Labor and mileage reimbursement to friends and family (South Carolina) Labor and mileage reimbursement to friends and family (South Carolina)

Housing Educate about accessibility (Connecticut) Educate about accessibility (Connecticut) Coverage of home modifications, home repair, special medical equipment and supplies and assistive technology by waivers (Mississippi) Coverage of home modifications, home repair, special medical equipment and supplies and assistive technology by waivers (Mississippi) Sufficient reserve bed capacity (South Carolina) Sufficient reserve bed capacity (South Carolina) One-time home modification grants (Texas) One-time home modification grants (Texas)

Accessibility State contracts with “gate-openers” (Hawaii) State contracts with “gate-openers” (Hawaii) Multiple attempts at community reintegration (Illinois) Multiple attempts at community reintegration (Illinois) Olmstead coordinators at state-operated psychiatric hospitals and intermediate care facilities (Kentucky) Olmstead coordinators at state-operated psychiatric hospitals and intermediate care facilities (Kentucky) “Choice letter” for LTC residents (Maine) “Choice letter” for LTC residents (Maine) Pre-screen for possibility of CB care (Massachusetts) Pre-screen for possibility of CB care (Massachusetts) LTC insurance promotion (Tennessee) LTC insurance promotion (Tennessee)

Funding Transition funds (Maryland) Transition funds (Maryland) Ohio Success Pilot Program Ohio Success Pilot Program Income disregards (Massachusetts) Income disregards (Massachusetts)

Examples of State Legislation Colorado (2002: HB 1039) Colorado (2002: HB 1039) Colorado (2002: HB 1067) Colorado (2002: HB 1067) New Hampshire (2001: HB 350) New Hampshire (2001: HB 350) Maine (2002: HB 1574) Maine (2002: HB 1574) Maryland (2002: HB 752) Maryland (2002: HB 752)

Legal Implications Professional liability insurance (place cap on liability) Professional liability insurance (place cap on liability) Medicaid Medicaid Housing Policies Housing Policies Increase in Olmstead-type lawsuits Increase in Olmstead-type lawsuits

Examples of Lawsuits The Arc of Delaware v. Meconi The Arc of Delaware v. Meconi Bradley Tinder v. Illinois Department of Public Aid Bradley Tinder v. Illinois Department of Public Aid Ball v. Beidess (AZ) Ball v. Beidess (AZ) Fisher v. Oklahoma Health Care Authority Fisher v. Oklahoma Health Care Authority

Future Implications Continued legislation & lawsuits Continued legislation & lawsuits Decreased hospital/institution-based services Decreased hospital/institution-based services Increased Medicaid burden Increased Medicaid burden